*1 206 284 Mich v BIVENS PEOPLE Docket Lynn basis of his was dicta proper application of ov [12] ov it is as [12] controlling authority pursuant court erred in respectively. Court, sexual conduct prison 1990-6. 18, 1994, No. 163762. Submitted A The Court of D. Bivens panel controlling authority, Richard terms penetration Accordingly, fifty points. at 9:45 a.m. (1992), of the The defendant Appeals M. pleaded 48 to 120 months and sexual conduct with erroneously Shuster, and assault with intent to commit criminal the second because the Leave Offense Variable held: nolo contеndere in the June Appeals and the trial court J., to appealed, arguing appeal sought. 8, 1994, concluded that degree holding to Administrative Order No. assault with intent to commit and People and was forty victim. Detroit. that as fifty points Warner was not relative to the that Barry sixty sentenced Decided is not holding months Circuit on the trial July tо recommended sentence under the the sentences guidelines departure score would have resulted in a reduced controlling [12] even if a reduced ov under these circumstances the defendant’s sentence was controlling authority, but rather Affirmed. Michael J. and was error anticipated P.J., concurring, Kelly, imposеd. Remanding form would setting possibility proper, score because forth futile. sentencing guidelines, the case for not because Warner was stated and filed a аdequate [12] as even if fifty points affirmance of resentencing reasons for Polus was sentencing and Kelley, Attorney General, Frank J. L. Thomas Casey, Crowley, General, Solicitor Dale A. Prose- cuting Attorney, Flancher, and B. Steven Assistant Attorney people. General, for the Gregory (by Gregory Veltema, N. P.C. N. Veltema), for the defendant. Opinion of the Court Fitzgerald P.J., J.
Before: Kelly, Michael and JJ. Corrigan, charged with two Per Curiam. Defendant *2 first-degree sexual conduct and counts of criminal second-degree criminal sexual con- three counts of plea agreement, defendant duct. Pursuant pleaded to a nolo contendere of assault with intent penetration, 750.520g(l); commit sexual MCL MSA 28.788(7X1), and assault with intent to commit second-degree conduct, criminal MCL 28.788(7X2). 750.520g(2); MSA Defendant was sen- prison tenced to forty terms of 48 to months and sixty resрective months for his convictions. appeals right. Defendant as of We affirm. argues in Defendant that the trial court erred considering prior the criminal sexual сonduct with assessing fifty points victim in for Variable Offense published opinions 12. This issue has arisen in two adoption since the of Administrative No. Order requires prior 1990-6, which this to follow Court a published on or after decision of this Court issued 1, 1990. November Warner, 26;
In Mich NW2d 397 this Court concluded that uncon- prior troverted evidence of instances of sexual penetration between the defendant and the victim support scoring could be used to offense on the evidence of defendant and the victim that was contained the trial court’s of In variables. the trial court relied prior penetrations between the presentence report scoring fifty within the in points affirming for 12. In the ov defendant’s sen- tence, this Court stated: note, purposes argument of defendant’s We regarding imposed, if the sentence that even we to find the court trial 206 оp Opinion the Court 12, ov defendant’s sentence would still fall within guidelines range. minimum
the at [Id. 29.] 197; In 495 NW2d (1992),1 panel another of this Court (Griffin, dissenting), J., held that conduct cannot be holding, used the In so рanel noted in a footnote that Warner not controlling authority: support While Warner arguably propo- does
sition and the conduct between the defеndant may victim Offense Variable we conclude that does not control any case bar because such conclusion is mere dicta. While Warner did considеr conduct upheld Offense Variable this trial court’s guidelines, of the the Warner decision explicitly never question addressed the *3 whether appropriate сonduct is in consider- ing question Rather, scoring the of Offense 12. Variable the by addressed the trial court the Court in Warner was whether properly could consider presentence uncontroverted evidence in a report establishing scoring the sentencing guide- the Furthermore, lines. the Warner Court noted that not would remand the resentencing matter if it even find the trial court had improperly scored Offense Variable on the basis of the trial sentencing. court’s comments at at [Id. 200-201, n 3.] dissenting opinion Judge In his Grif- fin stated: disagree I the majority’s with conclusion that language
the addressing Warner this is that, issue mere In regard, dicta. this I note prosecutor application appeal The in Polus filed an for leave to Supreme the Court pending. on March 1993. Leave is still by Kelly, P.J. Michael J. War- routinely followed today, our Court has until . . . regard issue. with to this
ner binding precedent in Warner is The decision 1990-6, 436 No. pursuant to Administrative Order view, majority’s failure to my In Mich lxxxiv. that order. is a violation of follow Warner [Id. 206-207.] case, prоsecutor’s agree
In this we with con- the Polus erroneously contention on the that Warner was controlling not cluded between defen- issue whether conduct in the be considered may dant and the victim issue Although 12. not the central scoring of ov case, the consideration of whether raised in the considered prior conduсt can be whether 12 was essential to the determination ov The properly. appropriateness 12 was scored the by of ov Court, that "even if as evidenсed its statement the trial court we were to find that the defen- 12 . . .” and its affirmance of scored ov in Warner is Thus, language dant’s sentence.2 law to which Administra- not and a rule of concerning 1990-6 resulted applies tive Order No. the Polus Court vio- Hence, of ov by failing No. 1990-6 lated Administrative Order to follow Warner. the trial court
Applying the prеsentence for ov because fifty points reveals, admitted, and defendant that he report the victim on occasions. digitally penetrated Affirmed. *4 (concurring). I J. P.J. believe Kelly,
Michael
sentence to be
scored
scored ov
2
The
does not render
proportionate even if the
Court’s conclusion that
as
suggested by the Polus Court.
its conclusion
it would find the defendant’s
guidelines
the trial court
improperly
Kelly,
J.
P.J.
Michael
majority
197;
in
197 Mich
(1992), correctly
26; 475 NW2d as whether uncontro- presentence report may vеrted evidence argued merely used that score ov The defendant points the lower court penetration under ov subject for the involved in the reading My offеnse. of Warner indicates specific that whether ported Court did not in on zero issue prior penetration incidents sexual re- presentence repоrt may in the be consid- only ered ov 12. The mention of penetrations quota- in Warner is buried in a block tion the lower court’s decision in that case. opinions majority I think both in Polus and the opinion incorrectly in this case assess Warner penetrations Court’s treatment of terms of whether or not is dicta. War- Because nothing ner issuе, never addressed the is there respect debate with Rather, to dicta. Warner is simply inapplicable.
Accordingly, directly Polus, which did address prior penetrаtions respect the issue with to the Polus, applies of ov in this case. Under the trial court should not have penetrations between defendant and the victim holding ov 12. I would follow the in Polus. penetrations occurring Consideration of months earlier violates the "same criminal transaction” requirement overlaps with which as- signs рoints "contemporaneous offense variable including acts,” criminal acts similar to the sub- ject offense that occur within six months of the offense. agree mаjority
I nonetheless with in this case that defendant’s sentence should be affirmed. normally remanding aWhile error entails *5 by Kelly, P.J. Michael J. light for reconsideration sentencing court to the court in this case scoring, the trial of the correct sentencing guide- out a filling it was indicated that deter- in the event this Court form departure lines exceeded. The had been guidelines mined that support of its noted numerous factors words, clearly the trial court In other decision. the sentences its intent to stand indicated imprison- to 5 years’ to ten and years’ four so. ment, doing reasons adequate cited these circumstances would be Remanding under futile.